MILITARY
Appeals Court Sides With HIV-Positve Air Force Offi cers
Fourth Circuit says discharge decision based on outmoded science, arbitrary review
BY ARTHUR S. LEONARD
A unanimous threejudge
appellate panel
has blasted the Trump
administration for relying
on “outmoded” information “at
odds with current science” when
the Air Force moved to discharge
otherwise healthy HIV-positive
service members based on the
spurious assertion they were not
available for deployment outside
the US.
The January 10 ruling from the
Richmond-based Fourth Circuit
Court of Appeals affirmed a preliminary
injunction on the plaintiffs’
behalf issued last year by District
Judge Leonie M. Brinkema
barring the discharges while the
case proceeds to a ruling on the
merits.
The court’s opinion, written by
Circuit Judge James Wynn, provides
a detailed review of relevant
Defense Department policies and
current medical facts, leaving little
doubt that Brinkema’s conclusion
that the two plaintiffs — anonymously
identified as Richard Roe
and Victor Voe — are likely to win
their case is solidly grounded in legal
reasoning.
The three-judge panel consisted
of Wynn, Albert Diaz, and Henry
Floyd, all of whom were appointed
by President Barack Obama. Floyd
had previously served as a district
judge appointed by George W. Bush.
Lambda Legal and Outserve-
SLDN (which recently merged with
the American Military Partner
Association to form the Modern
Military Association of America,
or MMAA ) brought the case on
behalf of Roe and Voe, as well as
other MMAA members who are
HIV-positive and subject to discharge
for that reason. Both Roe
and Voe had years of meritorious
service when they were diagnosed
as HIV-positive in 2017 as a result
of the Defense Department’s policy
of requiring periodic testing of
personnel. Both men immediately
went into treatment, are taking
antiretroviral therapy, have undetectable
HIV, and are healthy and
DC Army National Guard Sergeant Nick Harrison, who is fi ghting his discharge in a case similar to Richard
Roe and Victor Voe’s challenge to the Air Force’s effort to discharge them due to their HIV-positive
status.
uncompromised in their ability to
perform their duties.
Defense Department written
policies state unequivocally that
HIV-positive personnel who are
“determined to be fit for duty will
be allowed to serve in a manner
that ensures access to appropriate
medical care.” The Air Force
has a written policy stating that
HIV-positive status “alone is not
grounds for medical separation or
retirement,” and that, “force-wide,
HIV-infected employees are allowed
to continue working as long
as they are able to maintain acceptable
performance and do not
pose a safety or health threat to
themselves or others.” They “may
not be separated solely on the basis
of laboratory evidence of HIV
infection,” according to written
policy.
The Catch-22 in all this, however,
comes with the Air Force’s
insistence that personnel must be
deployable anywhere in the world,
and in particular to the central
theater of Air Force active operations,
known as CENTCOM, which
covers operations in North Africa,
Central Asia, and the Middle East.
Under a rule known as “Modification
13,” personnel who are “found
to be medically non-deployable will
not enter the Central Command
area until the non-deployable
LAMBDA LEGAL
condition is completely resolved or
an approved waiver is obtained.”
It lists “confirmed HIV infection”
as “disqualifying for deployment.”
The official in charge of granting
waivers has stated that it is highly
unlikely that a waiver would be
granted for HIV-positive service
members, and in fact no such
waiver has ever been granted.
In this litigation, the Defense Department
takes the position that
neither it, nor in particular the Air
Force, has an absolute ban on continued
employment of healthy HIVpositive
personnel. On the other
hand, since most of the Air Force’s
current activity is in the CENTCOM
area, Modification 13 prohibits
deployment of HIV-positive
personnel to CENTCOM without a
waiver, and the official in charging
of granting waivers does not grant
them for HIV-positive personnel,
there is, de facto, a ban.
The lawsuit claims that the
discharge of Roe, Voe, and similarly
situated service members
for being HIV-positive violates the
federal Administrative Procedure
Act (APA), as being “arbitrary and
capricious” in light of the specifics
of their individual cases, and also
violates the Fifth Amendment’s
equal protection requirements.
Judge Brinkema and the court
of appeals narrowed their attention
to the alleged APA violation, given
the well-established tradition of
avoiding constitutional questions
if a plaintiff is able prevail based
on a statutory claim.
It seemed clear to Brinkema
and the appeals panel that the
government’s position was inconsistent
with medical facts and
based on outmoded ideas about
HIV and current treatments. The
court emphasized that Roe and
Voe take daily pills not requiring
any special treatment — refrigeration
or shielding from temperature
extremes, which were required for
some earlier HIV treatments, is no
longer required — and that neither
man has experienced any significant
medication side effects. The
court also summarized the wellestablished
science that somebody
with undetectable levels of HIV
presents virtually no risk of transmission
through casual contact,
and even blood exposure or sexual
contact with somebody under antiretroviral
treatment whose HIV
level is undetectable is exceedingly
unlikely to result in transmission.
Both men present themselves as
fully capable of performing their
duties, and in both cases their
commanding officers have endorsed
their request to be allowed
to continue serving, as have military
physicians. However, the Air
Force, despite the requirements in
published policies to evaluate each
case on its individual merits, has
maintained a de facto categorical
exclusion. Each man appealed the
initial rulings against them within
the military structure, and both
were met with virtually identical
formulaic statements that they
had to be discharged on medical
grounds under the deployability
rules. That alone suggests their
cases did not receive individualized
consideration.
“To comply with the APA,” wrote
Judge Wynn, “the agency must
examine the relevant data and
articulate a satisfactory explanation
for its action including a rational
connection between the
➤ AIR FORCE DISCHARGES, continued on p.22
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